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Article: Dr Harington’s Epigram

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academic writing

Dr Harington’s Epigram

(Part of the story of Jane Austen’s aunt, Jane Leigh Perrot) 

Sub Judice lis esto. 
To love of plants, which boasts the better claim, 
Darwin the Bard, or surreptitious Dame? 
Try Thou the cause, Judge Botany, we pray. 
Let him the Laurel gain, and her the Bay.
 
Sub Judice lis est. 
To love of plants, who has the greater claim, 
Darwin the Bard, or Perrot’s wily Dame? 
Decide the cause, Judge Botany, we pray. 
Let him the Laurel take, and her the Bay.
 

These are two versions of an epigram which was circulating in Bath in the period 1799-1805, and attributed to Dr Henry Harington. Harington (1727-1816) was elected as an Alderman in 1791, Mayor of Bath, 1793-4, and a Magistrate or Justice of the Peace, 1796-1809. He was one of the magistrates in August 1799, when Jane Leigh Perrot was committed to Ilchester Gaol to await trial at the Taunton Assizes in March 1800. He was an erudite polymath: doctor of medicine, composer of music, distinguished Latinist,3 and experienced magistrate with a knowledge of criminal law and procedure. Harington knew the meaning of the words sub judice and their legal significance. He knew the difference between the offences of shoplifting and garden robbing and their respective penalties. He knew more about the subject than most of his contemporaries and most modern authors. 

 

In November 1804, and again in June 1805, Penelope Hind reported a story that Jane Leigh Perrot had been caught in the act of misappropriating “some green house plants,” or “a small plant then growing.” The story is based on hearsay evidence, or worse than hearsay evidence because we are not told which of the three people in the garden at the time spread the information. In any case there was no prosecution. It was then, according to Penelope Hind, that Dr Harington wrote the epigram set out above. 

 

That must be wrong. We are not told how much Latin and law Penelope Hind, or her source, Miss Matilda Rich, of Sonning, had. Probably little or none. Certainly less than Dr Harington. 

 

There are three reasons why Harington cannot have written the epigram after the garden robbing episode. The first is in the heading: Sub judice lis est, legal proceedings are in progress. But we are told that there was no prosecution. If there had been it would certainly have been reported in the local newspapers. The case never was sub judice. And Harington would not have used that heading.4 

 

Scan of the inscription

The second reason concerns Dr Erasmus Darwin. Why should anyone compare Erasmus Darwin and Jane Leigh Perrot? Why should anyone talk about them together? Darwin was dead. He died on 18 April 1802. No one was talking about him or his books in 1804. It would be very strange to resurrect him in a comparison with Jane Leigh Perrot. Harington would not have done so. 

 

The third reason concerns the penalties. Shoplifting was a felony, a capital offence, for which the penalty was death by hanging or, in practice more often, transportation to Australia for fourteen years. The Shoplifting Act 1699 was “An Act for the better apprehending, prosecuting and punishing of felons that commit burglary, house-breaking, or robbery in shops, warehouses, coach-houses or stables, or that steal horses.” That did not extend to robbery in gardens or green houses. Gardens are not shops, and gardeners are not shopkeepers. It was not until 1825 that “stealing plants, trees, roots, vegetables, fruits, etc, when not severed from the freehold,” was made a felony. In 1804 persons convicted of garden robbery were liable only to be fined the value of the plants, fruit or vegetables taken upon them. They were not liable to be transported, and Harington’s epigram does not fit. In that case Penelope Hind’s version of the epigram must be a thoughtless and ignorant up-dating of Blake’s earlier version by someone who did not know enough Latin or law. 

 _________________________________________

The introduction to Blake’s version of the epigram says:
Mrs Lee Perrot, tried at Ilchester on a charge of stealing 
lace in a Milliner’s Shop at Bath, having some time after 
been brought before the Magistrates of that City, charged 
with stealing plants, the following epigram appeared 
generally thought to be written by Dr Harington. 
 

This must have been written before the trial at Taunton Assizes in March 1800. There was so much publicity about the actual trial, both locally and nationally, that it is inconceivable that anyone in Bath should think afterwards that she was tried at Ilchester. The case would no longer be sub judice after the trial. Mr Blake is recorded as having arrived in Bath on 17 October 1799, and the entry in his commonplace book may have been written soon after that. 

 

The epigram does not say that she tried to steal any plants. Indeed she could not have stolen any plants in Bath while the case was still sub judice and she was in prison in Ilchester. Harington may have found out about her love of plants when she was summoned before the magistrates, of whom he was one, on 14 August 1799. We do not have any account of the hearing, but presumably her defence was that the white lace had been planted in her parcel by Charles Filby. Indeed Ellen Moody, who has been studying the trial for years, actually uses the word plant. According to her, the defence was “that the shopkeeper had planned the incident and deliberately planted the white lace on Mrs L-P to be able to blackmail her.”5  

The epigram itself may have been written on 14 August, immediately after the magistrates hearing with the Leigh Perrots, or soon thereafter. Erasmus Darwin’s epic poem, The Loves of the Plants, had been mentioned in the local newspapers the previous week.6 It was not about Darwin’s love of plants; the plants did the loving. And there was no evidence that Jane Leigh Perrot had a love of plants; she liked the idea that the white lace had been planted. And that was a sufficient basis for an amusing epigram by a gifted lawyer and Latinist.

Between 14 August and the trial at Taunton Assizes the following March James Leigh Perrot received several letters saying that “They (Charles Filby and William Gye) are circulating the most false and injurious calumnies to prejudice Mrs Perrot in the Eye of the world.” One RW (unidentified, but apparently an employee of William Gye) wrote from The Grey Hound Inn, Market Place, to inform him of “Circumstances with which it is proper you ought to be acquainted.” The date of the letter is not altogether clear. MacKinnon (p. 26) says it looks most like ‘Oct 29’. The full text and facsimile can be found on the Jane Austen blog, Bath, 15 August 2021, under the title, A letter from RW to James Leigh Perrot: An enlightening letter on the Leigh Perrot shoplifting case. The contents suggest that it was written very soon after 14 August, when Filby and Gye and their accomplices were holding frequent meetings to try to settle matters quickly before 24 August when the Commissioners in Bankruptcy considered Filby’s case. In RW’s letter I read, The Grey Hound Inn, Market Place, Bath, 19 inst.8 What were “the most false and injurious calumnies”? They might have been, or have included, an allegation of plant-stealing inspired by a novel interpretation of Dr Harington’s epigram. 

Blake’s version of the epigram does not name Mrs Leigh Perrot. It simply refers to a “surreptitious Dame.” At first the local newspapers did not name her. They simply referred to “A lady of fashion,” or “The Lady of this City,” or “The lady of a gentleman of fortune,” or “The lady accused of pilfering lace.” At the end of September they started referring to her as “Mrs P…..t.” And on 10 October she wrote to her cousin, Mountague Cholmeley, “although the Newspapers have only reached as yet the Initials of my name, they consider me now as fair game, and I shall travel for the future at full length I daresay.” In fact her name did not appear in full, or at all, in the newspapers until the trial at Taunton in March 1800. But it did circulate orally; Mr Blake heard it, but he did not spell it correctly and wrote “Mrs Lee Perrot.” At the same time the papers referred frequently to the county gaol at Ilchester but not to the trial at Taunton Assizes, which may help to explain his mistake about the date and place of her trial. After the trial, when her full name had been publicised, it was a simple matter to revise the epigram and change “surreptitious Dame” to “Perrot’s wily Dame.” 

The epigram does not say that she tried to steal any plants. Indeed she could not have stolen any plants in Bath while she was in prison in Ilchester. But it could be read in that way, and it was read in that way by Penelope Hind and Matilda Rich five years later. They were wrong. The epigram was not written after the plant-stealing incident. The plant-stealing incident was imagined after the epigram. 

Summary

10 August 1799: The Loves of the Plants by Erasmus Darwin mentioned in the Oxford Journal.

14 August 1799: Jane L-P appears before the Bath magistrates, of whom Dr Harington was one. Her defence was “that the shopkeeper had planned the incident and deliberately planted the white lace on Mrs L-P to be able to blackmail her.” (Ellen Moody)

Dr Harington writes his epigram comparing Darwin and Mrs L-P and their love of plants. He does not refer to her by name, only as “surreptitious Dame.” She is never mentioned by name in the press before the trial at Taunton in March 1800.

19 August 1799: The Reading Mercury, the Leigh Perrots’ local newspaper when they were staying at Scarlets, has “the lady of a gentleman of fortune” on page 3 and Erasmus Darwin on page 4.

Letter from RW to James Leigh Perrot: “They (Charles Filby and William Gye) are circulating the most false and injurious felonies to prejudice Mrs Perrot in the Eye of the world.” Like plant-stealing, for example?

17 October 1799: Mr Blake arrives in Bath and records the epigram in his commonplace book. He spells her name wrongly, Mrs Lee Perrot, because he has only heard it, not seen it, and refers, wrongly, to her trial at Ilchester.

29 March 1800: Taunton Assizes, Mrs L-P tried and acquitted. Mrs L-P’s name published and Leigh spelled correctly. Epigram revised: “Perrot’s wily Dame.” The epigram and the rumour about plant-stealing continue to circulate, wrongly, because the case is no longer sub judice and garden-robbing, unlike shoplifting, is not a capital offence, so that the reference to Botany Bay is out of place.

18 April 1802: Death of Erasmus Darwin at the Priory, near Derby.

November 1804: Epigram and rumour recorded by Penelope Hind, who was unaware that the epigram did not fit the alleged incident.

 

David Pugsley is the Hon Archivist of the Western Circuit, an organisation for barristers between Gloucester and Winchester and Land’s End. He gives talks and writes articles about the history of colourful barristers and leading criminal cases, mainly murders, and the law of duelling in the area of the Circuit. You can read another of David's articles on Jane Austen here. 

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Footnotes: 

1. T Blake, Miscellanies, 1775-1824, unpublished commonplace book, George A Smathers Libraries, University of Florida.

2. Penelope Hind, Diaries and Correspondence, edited by Sarah Markham (Salisbury, 1990); Jane Austen Society Annual Report for 1991, 11-12. She made this entry in her diary in November 1804.

3. For Latin inscriptions by Dr Harington, see Bath Chronicle, 13 March 1806 and 8 September 1808.

4. Claire Tomalin, Jane Austen, A Life (1997), page 319, quotes the epigram without the heading but does not say why.

5. Ellen Moody, How Jane’s Aunt Jane stole that lace – her premeditated petty shoplifting, Jane Austen blog, 13 October 2012, page 3/7. In the quotation “shopkeeper” (Elizabeth Gregory) should read “shopman” (Charles Filby). He had done the planting. Ellen Moody’s article is very muddled and difficult to follow. She confuses the shop staff. For example: “Miss Gregory, Mr Smith’s clerk.” (p. 2) No, Mr Smith disappeared more than six months ago, and Miss Gregory was the shopkeeper in August 1799. “The possible liaison between the male shopkeeper and his sister-in-law.” (p. 3-4) No, there was no male shopkeeper. Filby was the shopman, (at a salary of £50 a year). And Elizabeth Gregory was not his sister-in-law. In the later incident, she calls the garden the shop, and the gardener the shopkeeper (p. 4). But gardens are not shops, nor are gardeners shopkeepers; and the Shoplifting Act 1699 does not apply to gardens or green houses. Her previous article, The Life and Crimes of Jane Leigh Perrot, Jane Austen blog, 16 July 2011, is equally difficult to follow. At page 5 of 14, she says: “Now for the evidence that Jane’s Aunt Jane did it. This is usually not brought up by the many who want to argue she didn’t. One of the employees in the shop persistently testified that she saw Mrs Leigh Perrot do it – under some sharp barrages from Mrs Leigh Perrot’s lawyer. This is long and convincing. And of course the others said she did it, and she had the lace on her. The sketch by Borowitz shows how easily she could have done it, and just as she was accused of doing it.” The female employee in the shop who apparently testified that she saw Mrs Leigh Perrot do it, was Sarah Raines, the apprentice. Her evidence is set out in John Pinchard’s report of the trial at pages 26-29. She saw Mrs Leigh Perrot go out of the shop, but she did not see Filby give her the change for the five pound note. At no stage in the examination in chief or the cross-examination did she say that she had seen Mrs Leigh Perrot take the white lace. This is not convincing at all. Presumably Ellen Moody meant to say that the male employee in the shop (Charles Filby) testified that he saw her do it. He certainly did: see pages 16-17 and 24. According to him, she had white lace in her left hand and the black lace parcel and her change in her right hand. It must have been very inconvenient, but he was sure that she did not put her change into a purse. This is extraordinary, because in their statement to the Town Clerk on 8 August, Elizabeth Gregory and Charles Filby said that “she took her change, saw that it was right and put it in a Morocco pocket purse.” As John Morris KC pointed out in counsel’s opinion it would not be possible to put the change in her purse without using both hands, that is, including her left hand which was apparently hiding the white lace. In their depositions on 14 August the purse was deleted. Anyone who still thinks that Mrs Leigh Perrot really did steal the white lace, should read the letter from John Morris KC to James Leigh Perrot, dated 5 April 1800 (so after the trial), reprinted in MacKinnon, page 121. I cannot find anyone who has done so. Ellen Moody does not cite it at all.

6. Oxford Journal, 10 August 1799.

7. The Reading Mercury, 19 August 1799, the Leigh Perrots’ local newspaper when they were staying at Scarlets, has “the lady of a gentleman of fortune” on page 3 and Erasmus Darwin on page 4. That co-incidence was enough to provide the inspiration for the play on words in Harington’s epigram.

8. Compare the numeral before the 9 in RW’s letter and the numerals at the bottom of the well known portrait of Mrs Leigh Perrott: Published May 1.1800 by GG & J Robinson. (This line is omitted by MacKinnon and in many other reproductions of the portrait.)

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